Wilson v. Redmond Constr., Inc.

• Decision Date: 16 June 2021
• Docket Number: A21A0506, A21A0507
• Citation: 860 S.E.2d 118,359 Ga.App. 814
• Court: Georgia Court of Appeals
• Parties: Douglas R. WILSON et al. v. REDMOND CONSTRUCTION, INC. Redmond Construction, Inc. v. Douglas R. Wilson et al.

359 Ga.App. 814

860 S.E.2d 118

Douglas R. WILSON et al.

v.REDMOND CONSTRUCTION, INC.

Redmond Construction, Inc.

v.Douglas R. Wilson et al.

A21A0506, A21A0507

Court of Appeals of Georgia.

June 16, 2021

Robert Bates Lovett, for Appellant in A21A0506.

Thomas Lawrence Evans, for Appellee in A21A0506.

Thomas Lawrence Evans, for Appellant in A21A0507.

Robert Bates Lovett, for Appellee in A21A0507.

Rickman, Presiding Judge.

Douglas Wilson and Denise Wilson sued Redmond Construction, Inc. ("Redmond") for breach of contract and the negligent construction of a driveway. Redmond moved for partial summary judgment on the Wilsons’ claims for attorney fees and litigation expenses. The trial court granted the motion, and the Wilsons appeal this order in Case No. A21A0506. Redmond cross-appeals in Case No. A21A0507, arguing that the trial court erred when, in an earlier order, it denied Redmond's motion to exclude the testimony of the Wilsons’ expert witness. We affirm the grant of summary judgment on the Wilsons’ claims for attorney fees in Case No. A21A0506, and we affirm in part, vacate in part, and remand in Case No. A21A0507.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation and punctuation omitted.) Hunsucker v. Belford , 304 Ga. App. 200, 200, 695 S.E.2d 405 (2010).

So viewed, the Wilsons contracted Redmond to construct a new home and its driveway, and Redmond hired a subcontractor to construct the driveway. The Wilsons moved into the home after it was completed and soon noticed that there were cracks, pitting, and holes in the driveway and that the driveway was not leveled, which caused standing water. The Wilsons notified Redmond about the driveway's problems, and Redmond ultimately replaced landings near the driveway that resolved an issue with standing water, but other issues remained. The Wilsons continued to request that Redmond fix the driveway. Redmond sent someone to pressure wash the driveway in order to identify the alleged weak and deteriorating areas, but the Wilsons alleged that caused more damage. Redmond proposed filling the driveway's cracks with silicone or epoxy and adding a new top coat of concrete refinishing to resurface and strengthen the driveway, but the Wilsons rejected these proposals.

The Wilsons hired a civil engineer to inspect the driveway's concrete, and the engineer identified several alleged defects in the driveway's construction and recommended completely replacing the driveway. Redmond also retained its own expert, who prepared a report and recommended grinding away the driveway's superficial paste and replacing it with a self-leveling concrete dressing to resolve the leveling issues and cure the aesthetic issues. The Wilsons sued Redmond, alleging negligent construction and breach of contract. The Wilsons also alleged that they were entitled to attorney fees and costs because there was no bona fide dispute as to Redmond's liability and Redmond caused the Wilsons unnecessary trouble and expense, acted in bad faith, and were stubbornly litigious. Redmond filed a notice of non-party fault under OCGA § 51-12-33,¹ alleging that Redmond's subcontractor was wholly or partially at fault with respect to the Wilsons’ claims.

Redmond then filed a motion for partial summary judgment on the Wilsons’ claims for attorney fees under OCGA § 13-6-11, arguing that: (1) because bona fide controversies existed as to both liability and damages, it was entitled to summary judgment as to any claims that it was stubbornly litigious or caused the Wilsons unnecessary trouble and expense; and (2) there was no evidence that it acted in bath faith. In addition to introducing the depositions of the parties and their experts, Redmond also introduced an estimate from its expert, who estimated that his proposed solution would cost approximately $12,250.00 as well as the Wilsons’ responses to interrogatories wherein they indicated that the total cost to repair the driveway in accordance with their proposal would cost $58,392.40. The trial court granted Redmond's motion for partial summary judgment, finding that: (1) the record showed that there was a controversy over causation and/or apportionment involving Redmond's subcontractor and there was a controversy related to the appropriate remedy and cost of repair; and (2) that the Wilsons proffered no evidence of a dishonest purpose, moral obliquity, conscious doing of wrong or ill will on the part of Redmond to support a finding of bad faith. The Wilsons directly appealed.

Case No. A21A0506

The Wilsons argue that the trial court erred in granting summary judgment on their claims for OCGA § 13-6-11 attorney fees.² OCGA § 13-6-11 "authorizes the finder of fact to make an award of attorney fees and other expenses of litigation where (1) the plaintiff specially pleads and prays for such an award, and (2) the finder of fact finds that the defendant acted in bad faith in the underlying transaction or that, after the transaction on which the cause of action is predicated, the defendant was stubbornly litigious or caused the plaintiff unnecessary trouble and expense." Horton v. Dennis , 325 Ga. App. 212, 216, 750 S.E.2d 493 (2013).

1. The Wilsons contend that the trial court erred in granting summary judgment on their claims for attorney fees and expenses of litigation because the evidence showed that Redmond acted in bad faith, or, in the alternative, at least created a genuine issue of material fact on this issue. We disagree.

"Bad faith warranting an award of attorney fees must have arisen out of the transaction on which the cause of action is predicated. It may be found in how [a] defendant acted in his dealing with the plaintiff." (Citation and punctuation omitted.) City of Gainesville v. Waters , 258 Ga. App. 555, 559 (4), 574 S.E.2d 638 (2002). "Moreover, we have noted that there may be bad faith in carrying out the provisions of the contract sufficient to support the award." (Citation and punctuation omitted.) Oglethorpe Power Corp. v. Estate of Forrister , 332 Ga. App. 693, 706 (2) (e), 774 S.E.2d 755 (2015). "Bad faith cannot be prompted by an honest mistake as to one's rights or duties but must result from some interested or sinister motive. Bad faith is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of interest or ill will." (Citation and punctuation omitted.) MARTA v. Mitchell , 289 Ga. App. 1, 4, 659 S.E.2d 605 (2007).

Here, the Wilsons contend that Redmond's bad faith is shown by its stubborn litigiousness, denial of liability, and its alleged intention not to repair or replace the driveway. But, as noted above, bad faith warranting an award of attorney fees must have arisen out of the transaction on which the cause of action is predicated. And in that regard, Douglas Wilson testified in his deposition that Redmond's owner and the Wilsons discussed the driveway's issues, that Redmond replaced landings near the driveway which fixed a leveling issue that caused standing water, and that although the Wilsons testified that Redmond "didn't see it as a problem," Redmond's owner nonetheless visited the house and ultimately "whether to appease us or what, he started talking about a top coat." Additionally, Redmond's owner testified that he sent someone to pressure wash the driveway in order to check its surface, and he also testified that the Wilsons dismissed Redmond's plan to fill in the driveway's cracks with silicone. Thus, the record shows that Redmond attempted to address the alleged problems with the driveway, which supports the trial court's finding that there was no evidence of bad faith in the underlying transaction. See C & H Dev., LLC v. Franklin County , 294 Ga. App. 792, 795 (2), 670 S.E.2d 491 (2008) ; Garrett v. Women's Health Care of Gwinnett, P.C. , 243 Ga. App 53, 55 (1), 532 S.E.2d 164 (2000) (affirming grant of summary judgment to defendant on plaintiff's OCGA § 13-6-11 claim for bad faith attorney fees in breach of contract and fraud case and finding that there was no evidence that the defendant "acted through ill will or furtive design with regard to the performance of the contract" where the defendant relied upon the calculations of a corporate accountant in calculating bonus payments due under a contract and where the accountant "clearly believed that his method of calculation was appropriate, and there [was] no evidence that [the defendant] had reason to believe otherwise"); see also M & H Constr. Co. v. North Fulton Dev. Corp. , 238 Ga. App. 713, 715 (1), 519 S.E.2d 287 (1999) (affirming trial court's grant of j.n.o.v. on OCGA § 13-6-11 attorney fees claim in breach of contract case where most of the evidence relied upon by the plaintiff arose from the financial disputes between the parties and at most amounted to a failure to pay a debt, which was insufficient to support an award of attorney fees).

2. The Wilsons also argue that the trial court erred in granting the motion for summary judgment on the issue of attorney fees because the evidence in the record indicated that a bona fide controversy did not exist, and in the alternative, there were genuine issues of material fact remaining as to whether a bona fide controversy existed. We disagree.

When the "basis for a recovery of attorney fees is either stubborn litigiousness or the causing of unnecessary trouble and expense, an award under OCGA § 13-6-11 is authorized where the evidence reveals that no bona fide controversy or genuine dispute existed—whether of law or fact, on liability or amount of damages, or on any comparable issue." (...